Pootharamanna Variyath Sivadasan and Pootharamanna Variyath Lakshmikutt y Varassi ar v. P.V. Ayyappan Ezhuthassan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 26TH DAY OF JULY 2017/4TH SRAVANA, 1939** **RP.No. 871 of 2016 () ---------------------** **JUDGMENT IN FAO (RO) 211/2015 DATED 16-03-2016.** **......** **REVIEW PETITIONERS/APPELLANTS/RESPONDENTS/DEFENDANTS: -----------------------------------------------------** **1. POOTHARAMANNA VARIYATH SIVADASAN, S/O.LAKSHMIKUTTY VARASSIAR, R/O MELATTUR P.O, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, KERALA - 679 326.** **2. POOTHARAMANNA VARIYATH LAKSHMIKUTTY VARASSIAR, D/O.MADHAVIVARASSIAR, R/O MELATTUR P.O, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, KERALA - 679 326.** **BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN** ## **RESPONDENT/RESPONDENT/APPELLANT/PLAINTIFFS:** **-------------------------------------------** **P.V.AYYAPPAN EZHUTHASSAN, S/O.NARAYANAN EZHUTHASSAN, R/O VENGERI AMSOM, KARUVASSERI DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, KERALA - 673 010.** **BY ADVS.SRI.K.B.SIVARAMAKRISHNAN SRI.K.SANEESH KUMAR** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 26-06-2017, THE COURT ON 26-07-2017 PASSED THE FOLLOWING:** **mbr/** **RP.No. 871 of 2016 () ---------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A : A TRUE COMPUTER COPY OF THE SAID ORDER DATED 14.9.2016 PASSED BY THE HON’BLE SUPREME COURT IN S.L.P.(CIVIL) NO.16429 OF 2016.** **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY// P.S. TO JUDGE** **mbr/** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **R.P.No.871 of 2016** ## **in** ## **F.A.O.(R.O.) No.211 of 2015** ## **-----------------------------------------------** ## **Dated 26[th] July, 2017.** ## **O R D E R** The appellants who lost the appeal seek review of the judgment. They are the defendants in the suit from which the appeal arose. The case set up by the plaintiff in the suit is that he obtained title to plaint C schedule property by virtue of Exts.A1 and A2 sale deeds and that the defendants have trespassed into a portion of plaint C schedule property, viz, plaint A schedule property and are attempting to trespass into the remaining part of the plaint C schedule property, viz, plaint B schedule property. The prayer in the suit was for recovery of possession of plaint A schedule property from the defendants and for a permanent prohibitory injunction restraining the R.P.No.871 of 2016 2 defendants from trespassing into the plaint B schedule property. 2. The plaint C schedule property originally belonged to Attathrikkovil Devaswom and the same was outstanding on lease in favour of Pootharamanna Wariam. As per Ext.A5 verumpattam deed, the second defendant who is a member of the Wariam obtained leasehold rights over plaint C schedule property. The extent of plaint C schedule property is shown in Ext.A5 verumpattam deed as 1 acre and 38 cents. In a partition effected in the Pootharamanna Wariam later, by virtue of Ext.A18 document, a portion of plaint C schedule property was allotted to the share of the children of the second defendant by including in the B schedule to the said partition deed. The extent of the property included in the B schedule to Ext.A18 partition deed is 104 cents. On the same day on which Ext.A18 partition deed was executed, the second defendant has released her leasehold right in respect of the property included in B schedule of Ext.A18 in favour of her children to whom the property included in the B schedule to the partition deed was R.P.No.871 of 2016 3 allotted. Ext.A1 sale deed was executed thereafter by the second defendant on behalf of her minor children to the plaintiff in respect of the property included in the B schedule to Ext.A18 partition deed. Later, the second defendant has executed Ext.A2 sale deed also in favour of the plaintiff by which another extent of 104.5 cents of property has been conveyed to him. Out of the property covered by Ext.A1 assignment deed, the plaintiff sold 17 cents to his brother. The specific case of the plaintiff is that out of the total extent of 1 acre and 38 cents covered by Ext.A5 verumpattam deed, the second defendant conveyed 1 acre and 4 cents by virtue of Ext.A1 sale deed and the balance 34 cents by virtue of Ext.A2 sale deed, though the extent is wrongly shown in Ext.A2 sale deed as 1 acre and 4.5 cents. The reliefs aforementioned are sought in the suit on that basis. The first defendant is the son of the second defendant. The suit was resisted by the defendants mainly on the ground that plaint A schedule property is not part of the property covered by Exts.A1 and A2 sale deeds. Alternatively, it was also contended by the defendants that if it is found that the R.P.No.871 of 2016 4 plaintiff has title over plaint A schedule property, they have perfected title to the same by adverse possession and limitation. 3. Initially, the trial court dismissed the suit. However, in appeal, the appellate court reversed the decision of the trial court and decreed the suit. The defendants challenged the decision of the appellate court before this court in R.S.A.No.50 of 2008. This Court remitted the suit for fresh disposal holding that there was no attempt on the part of the plaintiff to identify the suit properties with reference to the title deeds. Thereupon, the suit was dismissed by the trial court, holding that the plaintiff has not established title to the plaint A schedule property. The plaintiff took up the matter in appeal. The appellate court, though reversed the decision of the trial court that the plaintiff has established title to the plaint A schedule property, remitted the suit for fresh disposal on the ground that the plea of adverse possession raised by the defendants has not been considered by the trial court. F.A.O (R.O.)No.211/2015 was preferred by the defendants challenging R.P.No.871 of 2016 5 the said remand order and the said appeal was dismissed by this Court by the judgment sought to be reviewed holding mainly that what was conveyed by the second defendant to the plaintiff as per Ext.A1 sale deed is the property allotted to the share of her children by virtue of Ext.A18 partition deed; that what was conveyed by the second defendant to the plaintiff as per A2 sale deed is the property covered by Ext.A5 verumpattam deed less the property covered by Ext.A1 sale deed; that the second defendant has no property left with her after the said documents and that therefore the finding of the appellate court that the plaintiff has established title to the plaint schedule property is correct. 4. The defendants challenged the judgment sought to be reviewed before the Apex Court in S.L.P.No.16429 of 2016 on the ground that the property covered by Exts.A1 and A2 sale deeds is one and the same and that this Court has not considered the said contention. It is seen that in the light of the said contention, the Special Leave Petition was disposed of permitting the defendants to file a review petition before this R.P.No.871 of 2016 6 Court, and directing this Court to render a finding on the said issue after examining the documents and after notice to the parties. This review petition is instituted thereafter as permitted by the Apex Court in the order passed in the Special Leave Petition referred to above. 5. Heard the learned counsel for the defendants as also the learned counsel for the plaintiff. 6. Since review of the judgment is sought on various grounds, the learned counsel for the plaintiff raised a preliminary objection as to the scope of the review petition. According to the learned counsel for the plaintiff, in the light of the order passed by the Apex Court in the Special Leave Petition, the scope of the review petition shall be confined to the issue directed to be decided by the Apex Court in terms of the order passed in the Special Leave Petition. Per contra, the learned counsel for the defendants pointed out that the order passed by the Apex Court in the Special Leave Petition does not limit or curtail the review jurisdiction of this Court. According to the learned counsel, since the order was passed by the Apex R.P.No.871 of 2016 7 Court at a stage prior to the grant of leave to appeal, there is no merger of the judgment of this Court with the order passed by the Apex Court. It is specifically contended by the learned counsel for the defendants that any order disposing of a Special Leave Petition by the Apex Court before grant of leave will not deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court. In support of the said case, the learned counsel for the defendants has relied on the decision of the Supreme Court in **Kunhayammed** v. **State of Kerala** [(2000)6 SCC 359]. 7. It is trite that if a Special Leave Petition is dismissed, the order will not preclude the parties from invoking the statutory review jurisdiction. But, the question is as to whether the order passed by the Apex Court in the instant case can be considered as an order dismissing the Special Leave Petition preferred by the defendants. The order passed by the Apex Court in the Special Leave Petition reads thus: ## “Delay condoned. Heard learned senior counsel appearing on behalf of the petitioners. Our attention was drawn to Exhibits-A1 and A2, Sale R.P.No.871 of 2016 8 Deeds which are produced as Annexures P-4 and P-5 respectively. It is contended by the learned senior counsel that the property covered in Exhibit A-1, first sale deed dated 28.05.1974 and Exhibit A-2, second sale deed dated 18.06.1974 is one and the same property. This aspect of the matter has not been properly considered by the court below. In this view of the matter, the petitioners are at liberty to file a review petition before the High Court. The High Court after examining the aforesaid documents, record a finding and dispose of the review petition after notice to the concerned parties. The petitioners are also at liberty to move the trial court for granting such interim relief. With the aforesaid observation and liberty to the petitioners, the special leave petition stands disposed of.” According to me, the aforesaid order cannot be construed as an order dismissing the Special Leave Petition. It is an order disposing of the Special Leave Petition with a specific direction to the effect that the High Court shall consider the issue whether Exts.A1 and A2 sale deeds have been executed in respect of one and the same property, and shall record a finding thereon. In a case of this nature, according to me, the judgment rendered by this Court merges with the decision of the Apex Court and therefore, I am inclined to hold that the R.P.No.871 of 2016 9 scope of the review petition is confined to the issue directed to be decided by the Apex Court in terms of the order passed in the Special Leave Petition. 8. As noted above, in the light of the order passed by the Apex Court, the issue arising for consideration is whether the properties covered by Exts.A1 and A2 sale deeds are one and the same. Ext.A1 is a sale deed executed by the second defendant on behalf of her children in her capacity as their guardian and Ext.A2 is a sale deed executed by the second defendant in her individual capacity. The prior documents referred to in Exts.A1 and A2 sale deeds are distinct and different. In Ext.A1, the prior document referred to is Ext.A18 partition deed, whereas the prior document referred to in Ext.A2 is Ext.A5 verumpattam deed. The total pattam payable to Attathrikkovil Devaswom in terms of Ext.A5 verumpattam deed is Rs.25/-. It is seen that in Exts.A1 and A2, the said pattam is divided into two portions, of which Rs.15/- is shown as the pattam payable in respect of the property covered by Ext.A1 sale deed and Rs.10/- is shown as the pattam payable in R.P.No.871 of 2016 10 respect of the property covered by Ext.A2 sale deed. The consideration shown in Ext.A1 document is Rs.8,000/-, whereas the consideration shown in Ext.A2 is Rs.1,500/-. Ext.A13 is the decree in O.S.No.99 of 1989 referred to in the judgment and Ext.A8 is the judgment in the appeal preferred against Ext.A13 decree. In O.S.No.99 of 1989, Exts.A1 and A2 sale deeds were marked as Exts.B1 and B2. In paragraph 9 of Ext.A8 judgment, there is a reference to Exts.A1 and A2 sale deeds to the effect that the properties covered therein are not one and the same. The relevant portion of paragraph 9 of Ext.A8 judgment as regards Exts.A1 and A2 documents reads thus : “9. After hearing the arguments of the parties and after going through the records, we are of the view that the lower court has not approached the question in a proper way. Admittedly, Schedule II properties were purchased under the documents, Exts.B1 and B2 and these documents stand in the name of the first defendant. Ext.B1 is dated 28.4.1974. It consists of items 1 and 2 in Schedule II. The total consideration is for Rs.8,000/-. Ext.B2 is item 3 in Schedule II. It has a total extent of 1 acre 1 cent and the consideration is Rs.1500/-. While Ext.B1 was executed on 28.4.1974, Ext.B2 was executed on 18.6.1974. x x x x x x” Further, the deposition of the second defendant in O.S.No.99 of R.P.No.871 of 2016 11 I989 is part of the records in this case. The second defendant has categorically stated in her deposition in O.S.No.99 of 1989 that the properties covered by Exts.A1 and A2 are distinct and separate. The relevant portion of the said deposition reads thus:- **“** ®ÈßAí ®ÝáÄÞÈᢠÕÞÏßAÞÈᢠ¥ùßÏÞ¢. **Ext.B1** dɵÞø¢ èÎÈVÎÞøáæ¿ ØbJᢠ**Ext.B2** dɵÞø¢ ®æa ØbL¢ ØbJßW 3 æØaí ²Ýßæµ ØíÅÜ¢ Äàùá æµÞ¿áJá.å¥Kí ®æa ÍVJÞÕí øÞ¸ÕÕÞøcV ©IÞÏßøáKá.åµÞøcBZ Ø¢ØÞøߺîÄí ¾BZ øIáçÉøᢠµâ¿ß ¦Ãí. **”** In the said view of the matter, there is absolutely no merit in the contention advanced by the defendants that the properties covered by Exts.A1 and A2 are one and the same. 9. The review petition, in the circumstances, is without merits and the same is, accordingly, dismissed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)